Opinion
July 1, 1963
In a separation action, the defendant husband appeals: (1) from so much of an order of the Supreme Court, Queens County, dated March 5, 1963, as granted the plaintiff wife's cross motion to renew her application for temporary alimony and counsel fee and, on renewal, awarded her temporary alimony of $100 a week and a counsel fee of $750 with leave to apply to the trial court for additional counsel fees; and (2) from so much of an order of said court, dated April 11, 1963, made upon the defendant's motion for reargument, as adhered to the original determination. Order of April 11, 1963 modified: (a) by striking out its fifth, sixth and seventh ordering paragraphs and so much of the last ordering paragraph as, upon reargument, adhered to the original decision; and (b) by substituting therefor a provision that upon reargument the original motion for temporary alimony and counsel fee is referred to the trial court for determination. As so modified, order, insofar as appealed from, affirmed, without costs. Appeal from order of March 5, 1963 is dismissed, without costs, as academic. That order was superseded by the later order of April 11, 1963 granting reargument. On the present record, it is our opinion that plaintiff did not sustain her burden of showing that she needed an allowance for her support pending trial and for her prosecution of the action. In any event, the dispute as to that issue, as well as the disputes with respect to all other issues raised by the respective parties, may best be resolved by the trial court on the basis of the facts adduced at the trial, rather than by this court upon disputed facts stated in affidavit form ( Wyzenbeek v. Wyzenbeek, 286 App. Div. 863; Wightman v. Wightman, 7 A.D.2d 859). Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.